Docket No. 414
In the Matter of James N. Russo
Date: May 3, 1991
This Disposition Agreement is entered into between the State Ethics Commission (hereafter “the Commission”) and James N. Russo pursuant to section 5 of the Commission’s Enforcement Procedures. This Agreement constitutes a consented to final Commission order enforceable in the Superior Court pursuant to G.L. c. 268B, §4(j).
On January 24, 1990 the Commission initiated, pursuant to G.L. c. 268B, §4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A by James N. Russo in his capacity as fire chief for the Town of Hull.
The Commission and Chief Russo now agree to the following findings of fact and conclusions of law:
1. Chief Russo has been the fire chief for the Town of Hull since 1985. As such, he is a municipal employee as defined in G.L. c. 268A, §1(g).
2. Among his duties as fire chief, Chief Russo appoints firefighters off the civil service list.
3. In the spring of 1989 Chief Russo had reason to believe there would be two vacancies for firefighters in the department within a year. He requested a list of Hull residents who were eligible for full-time, permanent firefighter positions in anticipation of having to fill the vacancies.
4. According to the civil service list, one candidate was listed first with the highest score, and seven candidates tied for the second place on the list. The tying candidates were listed in alphabetical order. The first name listed of the tied candidates was Chief Russo’s wife’s brother.
5. It was Chief Russo’s intention to appoint the first two names on the list. However, he realized that because the second candidate was his brother-in-law, he might have a problem making the appointment himself. He had previously received a union bulletin which contained advice about applying for an exemption from the conflict of interest law when appointing a family member.
6. Chief Russo consulted town counsel who advised him to follow the exemption procedures described in the bulletin.
7. Instead of requesting an exemption, Chief Russo wrote to the Board of Selectmen (with a copy to the town manager) stating that he was removing himself from the hiring process and delegating the appointment authority to his deputy chief.
8. By October of 1989, the two vacancies had not yet occurred. Chief Russo became concerned about his ability to control the two vacancies because he was getting indications from the Department of Personnel Administration that it was about to issue new regulations giving appointment priority to previously laid-off firefighters regardless of residency. This would prevent Chief Russo from reserving the positions for Hull residents, which in his view was not in the best interests of Hull.
9. Accordingly, Chief Russo decided to do what he could to reserve the two upcoming vacancies for Hull residents. He decided to make two “permanent intermittent” appointments. As the list of eligible candidates for “permanent intermittent” firefighters was the same as the list for full-time firefighters, his brother in-law’s name was again listed second. On October 6, 1989, Chief Russo appointed the highest scoring candidate and his brother-in-law to two “permanent intermittent” positions.
10. “Permanent intermittent” appointees act as a reserve force. Appointment to a permanent intermittent force does not automatically put the person on the town payroll. However, its members, in order of seniority, have an absolute priority in appointment to the permanent full-time force. Although they did not go on the payroll as a result of their appointment, by appointing the highest scoring candidate and his brother-in-law as permanent intermittent firefighters, Chief Russo effectively made them the only candidates eligible for the two full-time vacancies when they eventually did occur.
11. On February 1, 1990, the two permanent intermittents were appointed permanent full-time Hull firefighters by the deputy chief of the Hull Fire Department.
12. Except as otherwise provided in that section, G.L. c. 268A, §19, in pertinent part, prohibits a municipal official from participating as such in a particular matter in which he knows that an immediate family member has a financial interest.
13. The appointment of permanent intermittent firefighter is a particular matter within the definition of G.L. c. 268A, §1(k).
14. A spouse’s brother is an immediate family member within the meaning of G.L. c. 268A, §1(g).
15. The appointment of Chief Russo’s brother-in law as a permanent intermittent firefighter affected his financial interest because it effectively guaranteed he would be placed on the town payroll as a full-time firefighter as soon as the predicted vacancies occurred.
16. Accordingly, when Chief Russo appointed his brother-in-law as a permanent intermittent firefighter knowing that he would be second in line for the permanent vacancies once they occurred, he violated G.L. c. 268A, §19.
Based on the foregoing, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings on the following terms agreed to by Chief Russo:
(1) that he pay to the Commission the sum of $750.00 as a civil penalty for violating G.L. c. 268A, §19; and
(2) that he waive all rights to contest the findings of fact, conclusions of law and conditions contained in the Agreement in this or any related administrative or judicial proceeding in which the Commission is a party.